Opinion
A131814
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. LUIS ANTONIO MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 51006170)
Luis Antonio Martinez appeals from his conviction of one count of inflicting corporal injury on a spouse. He argues that the trial court erred in admitting evidence of two prior incidents of domestic violence. We shall affirm the judgment.
Factual and Procedural History
Defendant was charged with one count of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) and one count of making criminal threats (Pen. Code, § 422). It was further alleged with respect to the first count that defendant inflicted great bodily injury under circumstances involving domestic violence. (Pen. Code, § 12022.7, subd. (e).)
The following evidence was presented at trial: The victim testified that she and defendant were married but were not living together. On the evening of January 11, 2010, defendant was visiting her in the apartment she shared with their adult children, when defendant told her, "Since I have to leave, you have to die." Then he grabbed the victim by the neck and squeezed so hard she had trouble breathing. He took hold of her left hand and squeezed and twisted it resulting in a fractured finger. When the victim's son learned of the incident, he immediately made his father leave and took his mother to the hospital. The victim's son confirmed that he told his father to leave the apartment and both the son and his girlfriend testified that they observed the injuries to the victim's hand shortly after the incident.
Defendant denied threatening the victim. He claimed that they argued because she was angry that he was going to El Salvador. As he tried to leave the apartment, she grabbed his jacket and pulled him from behind. He freed himself from her grasp and left the apartment. He denied seeing his son after the incident.
Over defendant's objection, evidence of two prior incidents of domestic violence were admitted at trial. The first incident took place in May 1997. The victim testified she and defendant had been arguing that evening and later, while she was sleeping, defendant entered her bedroom and sprayed her in the face with bug spray. Her face, neck, and ears were burned and swollen as a result. The injuries were sufficiently serious to require a hospital visit. The second incident occurred in October 2005. The victim testified that on that occasion, defendant threw a set of about 60 car keys at her face causing it to turn purple and leaving visible scrapes. Defendant acknowledged at trial that he pled guilty to felony charges arising out of both incidents. The records of defendant's convictions, which were admitted into evidence, showed that defendant was placed on probation following both convictions. Defendant also acknowledged that he was required to complete a 52-week spousal battery program following his 2005 conviction.
The jury found defendant guilty of corporal injury to a spouse and found the enhancement true. The jury found defendant not guilty of making a criminal threat. Defendant was sentenced to a term of six years in prison. Defendant filed a timely notice of appeal.
Discussion
When a defendant is charged with a domestic violence offense, Evidence Codesection 1109 permits the introduction of other acts of domestic violence to prove the defendant has a propensity to commit such a crime. However, evidence of domestic violence "occurring more than 10 years before the charged offense is inadmissible under [section 1109], unless the court determines that the admission of this evidence is in the interest of justice." (§ 1109, subd. (e).) Even if otherwise admissible, evidence of domestic violence may be inadmissible under section 352. (§ 1109, subd. (a)(1).) Section 352 "gives the court discretion to 'exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) In determining whether the probative value of evidence outweighs the prejudice, a trial court uses a balancing test and may consider such factors as "whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s)." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) The trial court's exercise of discretion under section 352 to admit evidence of other acts of domestic violence is subject to its sound discretion, and its ruling will not be disturbed on appeal absent a showing of abuse of that discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
All statutory references are to the Evidence Code unless otherwise noted.
Defendant contends the trial court abused its discretion in failing to exclude evidence of the 1997 incident under section 352. Defendant argues that the incident was both too remote in time and involved acts of domestic violence that were considerably more inflammatory than the facts of the present incident. While subdivision (e) of section 1109 establishes a presumption of inadmissibility for remote prior acts of domestic violence, the subdivision also "clearly anticipates that some remote prior incidents will be deemed admissible and vests the courts with substantial discretion in setting an 'interest of justice' standard." (People v. Johnson (2010) 185 Cal.App.4th 520, 539 [§ 1109, subd. (e) "sets a threshold of presumed inadmissibility, not the outer limit of admissibility"].) In Johnson, the court observed that the "more rigorous standard of admissibility for remote priors" does not "necessitate[ ] an inquiry different in kind from that involved in a determination under section 352." (185 Cal.App.4th at p. 539.) In this case, the trial court acknowledged that the 1997 incident occurred more than 10 years before the incident on trial, but found that it remained highly probative because the 1997 incident involved the same victim and was similar to the present incident in that it involved spontaneous acts of violence that did not arise out of an ongoing argument. (See People v. Hoover (2000) 77 Cal.App.4th 1020, 1029 [finding evidence highly probative "[p]articularly in view of the fact that the subject evidence involved defendant's history of similar conduct against the same victim"].) The court also found that the 10-year statutory period was broken by the intervening 2005 incident. With respect to defendant's argument that the facts of the 1997 incident are "far 'creepier' and certainly more provocative than the assault at issue in this case," defendant did not raise this argument in the trial court. In any event, we see no basis to reject the trial court's evaluation that the spraying incident was not significantly more offensive or inflammatory than the incident being tried, which involved twisting the victim's hand so hard as to break a finger. Accordingly, we find no abuse of discretion regarding the admission of defendant's prior acts of domestic violence and his resulting convictions.
Defendant's remaining arguments, though framed as relevant to the admission of the prior acts of domestic violence, are actually relevant only to whether the court erred in admitting additional evidence beyond the acts themselves and the resulting convictions. First, defendant argues that the court erred in admitting evidence that he was placed on probation following both prior convictions. He suggests that "the granting of probation in both cases may well have been seen by the jury as a 'slap on the wrist,' and that the jury was likely inclined to punish him for these earlier offenses." Defendant did not, however, raise this argument in the trial court or request that the evidence of his punishment be excluded. Accordingly, he has waived any claim of error. Moreover, considering the evidence properly admitted at trial, including the evidence of defendant's prior acts of domestic violence and resulting convictions, any potential harm resulting from the additional evidence that he was twice before placed on probation undoubtedly was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Finally, defendant argues that the "documents used to prove the prior showed that in the 2005 incident [defendant] was initially charged also with being a felon in possession of a firearm and with possessing methamphetamine. While these charges were apparently dropped as part of a plea deal, a discerning juror would not fail to notice these charges that had no relevance to the instant charges." Again, it does not appear that this argument was raised at trial. Prior to trial, during the argument on the admissibility of this evidence, the prosecutor noted that defendant threw the keys at the victim because he was angry that she and other family members had been trying to force him to enter a drug rehabilitation program. Defendant's counsel objected to "the evidence about the drug program" and the trial court agreed that evidence "should be sanitized from the 2005 incident." Consistent with the court's ruling, the witnesses did not discuss the events that led up to the 2005 incident. At no time, however, did counsel request that prior to admission the court documents be redacted to remove the additional charges alleged in the information. In any event, in light of the evidence properly admitted at trial, any potential error with regard to the admission of the unredacted court documents also was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Disposition
The judgment is affirmed.
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Pollak, J.
We concur:
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McGuiness, P. J.
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Siggins, J.